The International Institute of Advanced Islamic Studies (IAIS) invited Abdul Hamid Mohamad to give a public lecture on Hudud Law, but using the Brunei Model of Hudud implementation as the basis and foundation for the lecture. Abdul Hamid was the former Chief Justice of Malaysia and a man I have come to respect having read some of his judgments; often delivered without fear or favour.  

The Brunei Sultanate

Hamid described Brunei as a Malay Muslim Monarchy, quite rightly I must say. They are Malay because there is still a Malay sultan with absolute authority and powers. He rules as the supreme law of the land. They are not a democracy, by any definition, as even the basic human rights of the citizens are not protected or preserved by their law.

They are Muslim, probably of the Shafie sect and with Sunni convictions. One question is; how are other Muslim ‘mazhabs’ protected and preserved, if they are any in Brunei?

Finally they are a monarchy defined by the earlier two features and their ultimate ruler is the monarch himself; he is thus above the law and they believe in the doctrine that the king can do not wrong. My question however remains: Where does God feature in all of this thinking and logic system?  

Is the sultan then the supreme ruler of the Islamic State of Brunei, as in Iran?  But, are they not Shiite, and did they not set up their own system with a revolution? When did the Brunei sultanate host a revolution of heart and mind of their people?  Or, does such not need an Islamic form of renaissance?

Malaysia is a constitutional monarchy

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Hamid ( right ) went to great lengths then to explain the framework of the Malaysian context of constitutionalism and our version of a democracy; which is not simply one state, or one Malay sultan, but even from inception, was a federation of Malay States inclusive of the Straits Settlements.

To found that new structure and develop the requisite framework, there was a Constitutional Commission which did their job and when all issues were finally agreed to by the peoples’ representatives and the Malay sultans, we gained independence and became the Federation of Malaya, and then Malaysia.

Our constitution is written law, unlike the British model, and much like the US and Indian models. India gained Independence 10 years before we did, and presumably the learning from that model was good enough to capture the reality of the many fiefdoms that already existed in both nations before independence.

These were also, presumably, based on the American model of a written constitution, with one exception. In the American case, there were not local or native parties to deal with before the launch of the ‘so-called independence of the United States of America’. It was no one’s colony except that of the Native American Indians but they were not included in the negotiations; and as much as we did not with the Orang Asli, who are the Orang Asal.  

In Malaysia, unlike Iran or Brunei, the federal constitution says of itself: the constitution is the supreme law of this land. Does that not make it a secular constitution? Yes of course, I think, but I will await others to argue otherwise.

In any secular constitution, the values of any particular religion or faith system is not used as the basis of all other laws; instead, all universally accepted values are used to define all public space values and ethics. It is therefore called a Common Law system.

Are the Malaysian monarchs not under the same law of our land? Unlike Iran and Brunei, their supreme leader cannot be brought to court for any specific violation; they are by assumption above the law. But, in Malaysia, it is now otherwise. It was not explicit previously.

For absolute clarity on this issue the Mahathir administration passed a law that makes the monarchs subject to not only the constitution but also all civil laws of the land and instituted a Royal Court to deal with these issues.  

Let us therefore be clear here. It is not that they are not subject to Islamic law of jurisprudence, as heads of states, but rather they are explicitly now subservient to the civil and federal laws of this land.

But, the other question of import is, are they then also under the Islamic law of the land? Well, that is for the state spiritual Leaders to ascertain and then seek to enforce; not for the civil law authorities because we are a truly secular nation-state.

Nevertheless, one has to always be reminded that in the Malay States of the Federation of Malaya; the sultans are the head of religion, but of their version or interpretation of Islam.   

Whither Malaysia and hudud laws?

Hamid went to great lengths to then address “how the hudud laws and their principles are being enforced in Brunei”, and that they have been working on this for more than 30 years with his help. Nevertheless, he concluded his lecture with a clear statement that we will not know the full effects until we see their application in full practice.

However, he did point out all possible contradictions and overlapping jurisdictional issues. Surely, even our cabinet can learn from his lecture; if they take time to listen to Abdul Hamid, our former Chief Justice.

He also referred us to international jurists, his personal friends, and their views about how their attempts to enforce hudud is progressing in other countries like Nigeria, Sudan and others. Safe to say, his final word of advice was: whatever the hudud model is, let us not forget that the ultimate purpose of hudud was to promote the adherence to true worship and such a system must be both; a fair and just system.  

Prof Hashim Kamali also reminded that it must also promote national unity.

Otherwise, to both of them, the justice of God is never served. For those interested to review his full lecture please go to www.tunabdulhamid.com ; or even to read his all other judgments, lectures, etc which he has made in his 40-year career with the Malaysian judiciary, and after.

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For hudud laws to be implemented in Malaysia, maybe “force is not the first option way to do it”. In his opening comments, the moderator of the forum, Dr Mohamed Azam Mohamed Adil ( left ), said that the Malaysian state of Kelantan has already passed Hudud Enactments for more than 30 years, but have not been able to “enforce them”, simply because, as Hamid explained, the jurisdiction of criminal law enforcement lies with the Federation of Malaysia governance system and not with the Malay state authorities.

Only land matters and religion are explicitly under them.

Therefore, my view is that unless we have a two-thirds majority of Malay Muslims in Parliament who really and truly want “hudud laws” in Malaysia, this proposal will always remain an academic venture but maybe good enough to remain as the vision of our only Islamic party. The federal government has sworn not to issue or allow any more religion-based parties.  

Even PAS can only see their vision realised if they can succeed to get a two-thirds majority in Parliament; never otherwise. The Malaysian federal constitution needs to be amended if there is ever to be a possibility of an implementation of the hudud laws. There are some loopholes but these are not good enough to push these through.

As a careful observer, what I will however object to is any attempt to continue to pursue Backdoor Islamisation (1) , as Umno has been doing in many states, for over the last more than 30 years, ever since Dr Mahathir came into office and recruited ‘Saudara Anwar Ibrahim’ to be his able lieutenant.

Things have gone badly wrong since then, and let me state that it started with “trying to infuse Islamic values of a universal nature” into the administration of this nation-state, but obviously today it has gone towards more and more enforcement or implementation of hudud, with disregard to universal values as an end in itself.

In the meantime, our vision of and for justice takes a back seat, and bumiputra Christians have become the first real victims  Is that then a true reflection of a true and noble Islam, which I have come to be familiar with premised on the high value of justice? God bless Malaysia as we dig up all these issues for the Kajang Satay Party.

(1) I publicly asked or enquired of Hamid to comment on the Kartika Sari Dewi Shukarno “punishment by the criminal civil justice system but he did not answer my question”.